United States v. Fazio

• Decision Date: 04 August 2015
• Docket Number: No. 13–3111.,13–3111.
• Citation: 795 F.3d 421
• Parties: UNITED STATES of America v. Cosmo FAZIO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

795 F.3d 421

UNITED STATES of America

v.Cosmo FAZIO, Appellant.

No. 13–3111.

United States Court of Appeals, Third Circuit.

Argued: Oct. 1, 2014.

Filed: Aug. 4, 2015.

Almon S. Burke, Jr., Esq., (Argued), Mark A. Goldstein, Esq., (Argued), Goldstein & Associates, LLC, Pittsburgh, PA, Counsel for Appellant.

Michael L. Ivory, Esq., (Argued), Rebecca R. Haywood, Esq., Office of United States Attorney, Pittsburgh, PA, Counsel for Appellee.

Before: AMBRO, CHAGARES, and VANASKIE, Circuit Judges.

OPINION

CHAGARES, Circuit Judge.

Cosmo Fazio appeals the District Court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In his motion, Fazio asserted that his plea counsel was ineffective because he failed to warn Fazio properly of the immigration consequences of his guilty plea, as required by the Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Notwithstanding plea counsel's purported error, the plea agreement—which plea counsel reviewed with Fazio thoroughly—contained a waiver of collateral-attack rights and, inter alia, advised of the possibility that Fazio could face automatic removal from the United States as a result of the plea. The District Court conducted a detailed colloquy, specifically reviewing these provisions of the plea agreement with Fazio and questioning him regarding his awareness that a consequence of his plea could be automatic removal. This case requires us to determine the effect of the plea agreement's provisions and the District Court's colloquy on Fazio's ineffective assistance claim and whether the collateral-attack waiver is enforceable. For the reasons that follow, we will affirm the District Court's denial of Fazio's motion.

I.

On December 9, 2009, a federal grand jury sitting in the Western District of Pennsylvania returned an eight-count indictment against Fazio and twelve co-defendants for their alleged involvement in a cocaine distribution network. Fazio was charged only in Count One of the indictment with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. On June 3, 2011, Fazio pleaded guilty to the lesser-included offense of conspiring to distribute more than 200 grams but fewer than 300 grams of cocaine. Supplemental Appendix (“Supp.App.”) 1–2. Fazio's plea agreement contained the following provision:

Cosmo Fazio waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:

(a) If the United States appeals from the sentence, Cosmo Fazio may take a direct appeal from the sentence.

(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, Cosmo Fazio may take a direct appeal from the sentence.

Cosmo Fazio further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence.

Supp.App. 3–4. The plea agreement further stated:

Cosmo Fazio recognizes that pleading guilty may have consequences with respect to his immigration status if he is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses. Removal and other immigration consequences are the subject of a separate proceeding, however, and the defendant understands that no one, including his own attorney or the district court, can predict to a certainty the effect of his conviction on his immigration status. Defendant nevertheless affirms that he wants to plead guilty regardless of any immigration consequences that his plea may entail, even if the consequence is his automatic removal from the United States.

Supp.App. 3. Fazio was born and raised in Bari, Italy and immigrated to the United States in 1992, at the age of twenty-three. Supp.App. 27. He is a permanent resident alien. Appendix (“App.”) 50.

At Fazio's plea hearing, the District Court conducted a colloquy in open court. It specifically questioned Fazio to make sure that he understood the appellate waiver provision of his plea agreement:

THE COURT: Do you also understand ordinarily you or the government may have the right to appeal any sentence that I impose, however, I note in Paragraph A13 of your plea agreement, you and the government agreed that you would waive, again, that's give up, your right to take a direct appeal from your conviction ...

Further, you've also waived the right to file a motion to vacate sentence under 28 United States Code, Section 2255 and the right to file any other collateral proceeding attacking your conviction or sentence, do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Waivers of appeal are generally permissible if entered into knowingly and voluntarily unless they work a miscarriage of justice. I have examined the record in this case, observed you and heard your responses to my questions in open court, and I find no basis for invalidating your waiver in this case.

App. 26–28. The District Court also questioned Fazio regarding the potential immigration consequences of his guilty plea:

THE COURT: Mr. Fazio, in addition to the possible penalties of which I have advised you, because you are not a United States citizen, you will also face a risk of removal from the United States after you have served any sentence imposed by this Court.

Under federal law, a broad range of crimes are removable offenses, including the offense to which you are pleading guilty. Removal and other immigration consequences are the subject of a separate proceeding, however. Do you understand that no one, including your attorney or me or the government's attorney can predict to a certainty the effect of your conviction on your immigration status?

THE DEFENDANT: Yes.

THE COURT: Now knowing this, do you nevertheless want to plead guilty regardless of any immigration consequences that your plea of guilty may entail, even if the consequence is your automatic removal from the United States?

THE DEFENDANT: Yes.

App. 22–23. Fazio informed the District Court that he understood the nature of the offense to which he was pleading guilty. App. 16, 28. He also confirmed that he had reviewed the terms of the plea agreement with his attorney and understood those terms. App. 17, 35. The District Court found that Fazio was competent to plead guilty and that he was doing so knowingly and voluntarily. App. 44–45. Accordingly, the court accepted his plea.

Fazio was represented by counsel at the time of his guilty plea. His counsel was aware that Fazio was not an American citizen. App. 99. His counsel testified that, prior to the plea hearing, he informed Fazio that there

could be immigration consequences. However, it was my opinion that he would be entitled to a hearing. And given what I had learned of his family and friends and background, I was confident that with competent immigration counsel, being unaware of the law, that he stood a good chance of not being deported. I certainly told him it was a possibility, however.

App. 105. In addition, he testified that he reviewed the plea agreement with Fazio “line by line,” including the provision regarding immigration consequences. App. 106. After reviewing that provision, he told Fazio that “there was certainly a chance he could be deported, but it was my opinion he would not be.” App. 107.

After Fazio pleaded guilty, his wife became concerned about the possible immigration consequences of his conviction and contacted a law firm specializing in immigration law. App. 54. On June 13, 2011, ten days after the entry of his guilty plea, Fazio, his wife, a family friend, and his plea counsel met with immigration attorneys Mark Goldstein and Andrew Wood.App. 55. During that meeting, Goldstein stated that it was certain that Fazio would be deported because he had pleaded guilty to an aggravated felony. App. 56. Goldstein, Fazio, and Fazio's wife discussed the possibility that Fazio might request a change to his plea agreement to attempt to avoid this consequence. Fazio's plea counsel expressed that he had been unaware of the immigration consequences of the plea, that he had made a mistake, and that he would help Fazio rectify the situation. App. 56.

In July 2011, Fazio terminated his plea counsel and retained new counsel. App. 57–58. On November 1, 2011, Fazio moved to withdraw his guilty plea pursuant to Federal Rule of Criminal Procedure 11(d)(2)(B). Supp.App. 35–36. He argued that he was denied his Sixth Amendment right to effective assistance of counsel because his plea counsel failed to advise him properly regarding the immigration consequences of his plea, as required by the Supreme Court in Padilla v. Kentucky. Supp.App. 38. At the evidentiary hearing, Fazio's plea counsel testified that he told Fazio that he had “an absolute right to at least a hearing,” and that he “thought [Fazio] had a greater likelihood of staying in the country than being deported.” App. 117. Goldstein testified that the consequence of Fazio pleading guilty to an aggravated felony was that he would have no defense to deportation. App. 76. During cross-examination, Goldstein conceded that it was possible for someone who was convicted of the identical crime as Fazio to remain in the country if the person was provided with an S visa, given to some non-citizens who provide assistance to law enforcement, App. 83–86, or if there was a change in law, App. 91–92. On December 27, 2011, the District Court denied Fazio's motion to withdraw his guilty plea, finding that his attorney did not violate the standard in Padilla, and that even if he did, the Court's plea colloquy cured any error. Supp.App. 24, 40–41.

Following his sentencing, Fazio filed a direct appeal with this Court. The Government moved to...